GOVERNMENT GAZETTE STAATSKOERANT

Transcription

1 GOVERNMENT GAZETTE STAATSKOERANT VAN DIE REPUBLIEK VAN K.-\.-\ No I THE PRESIDENT PRESIDENT J u n e I

2 GENERAL EXPLANATORY NOTE: [ ] Words in bold type in square brackets indicate omissions from existing enactments. Words underlined with a solid line indicate insertions in existing enactments. ACT To provide for the prohibition of unlawful eviction; to provide for procedures for the eviction of unlawful occupiers; and to repeal the Act, 191, and other obsolete laws; and to provide for matters incidental thereto. PREAMBLE WHEREASnoonemaybedeprivedofpropertyexceptintermsoflawofgeneral application, and no law may permit arbitrary deprivation of property; AND WHEREAS no one may be evicted from their home, or have their home demolished without an order of court made after considering all the relevant circumstances; AND WHEREAS it is desirable that the law should regulate the eviction of unlawful occupiersfromlandinafairmanner,whilerecognisingtherightoflandownerstoapply to a court for an eviction order in appropriate circumstances; AND WHEREAS special consideration should be given to the rights of the elderly, children, disabled persons and particularly households headed by women, and that it should be recognised that the needs of those groups should be considered; B EITTHEREFOREENACTEDbytheParliamentoftheRepublicofSouthAfrica, as follows: Definitions 1. In this Act, unless the context indicates otherwise (i) building or structure includes any hut, shack, tent or similar structure or any other form of temporary or permanent dwelling or shelter;(ii) (ii) consent means the express or tacit consent, whether in writing or otherwise, oftheownerorpersoninchargetotheoccupationbytheoccupieroftheland in question;(x) (iii) court means any division of the High Court or the magistrate s court in whose area of jurisdiction the land in question is situated;(iv)

3 4 (iv) evict means to deprive a person of occupation of a building or structure, or thelandonwhichsuchbuildingorstructureiserected,againsthisorherwill, and eviction has a corresponding meaning;(xi) (v) land includes a portion of land;(iii) (vi) Minister means the Minister designated by the State President;(v) (vii) municipality means a municipality in terms of section B of the Local Government Transition Act, 1993(Act No. 9 of 1993);(vi) (viii) organofstate meansanorganofstateasdefinedinsection239ofthe ConstitutionoftheRepublicofSouthAfrica,1996(ActNo.8of1996);(ix) (ix) owner means the registered owner of land, including an organ of state;(i) (x) personincharge meansapersonwhohasorattherelevanttimehadlegal authoritytogivepermissiontoapersontoenterorresideuponthelandin question;(viii) (xi) unlawful occupier means a person who occupies land without the express ortacitconsentoftheownerorpersonincharge,orwithoutanyotherrightin lawtooccupysuchland,excludingapersonwhoisanoccupierintermsofthe Extension of Security of Tenure Act, 1997, and excluding a person whose informalrighttoland,butfortheprovisionsofthisact,wouldbeprotectedby the provisions of the Interim Protection of Informal Land Rights Act, 1996 (ActNo.31of1996).(vii) 1 Application of Act 2. This Act applies in respect of all land throughout the Republic. Prohibition of receipt or solicitation of consideration in respect of unlawful occupation of land 3.(1)Nopersonmaydirectlyorindirectlyreceiveorsolicitpaymentofanymoney or other consideration as a fee or charge for arranging or organising or permitting a persontooccupylandwithouttheconsentoftheownerorpersoninchargeofthatland. (2)Anypersonwhocontravenesaprovisionofsubsection(1)isguiltyofanoffence andliableonconvictiontoafineortoimprisonmentnotexceedingtwoyears,ortoboth such fine and such imprisonment. (3) The court which convicts any person of a contravention of this section, must order any money or other consideration received by that person which have been seized, to be forfeited, and the said money and the proceeds of such other consideration may be paid to the person or persons from whom the money or other consideration was received, and where such person or persons cannot be positively identified, into the National Revenue Fund. (4)Ifanymoneyhasbeenreceivedincontraventionofsubsection(1)buthasnotbeen seized or made available for purposes of confiscation, the court which convicts any person of a contravention of this section, may order the amount proved to the satisfactionofthecourttohavebeenreceivedbysuchpersontobepaidtothepersonor persons from whom the money or other consideration was received, and where such person or persons cannot be positively identified, into the National Revenue Fund, and suchorderhastheeffectofandmaybeexecutedagainstsuchpersonasifitwereacivil judgment in favour of that person or persons from whom the money or other consideration was received or in favour of the State Eviction of unlawful occupiers 4.(1) Notwithstanding anything to the contrary contained in any law or the common law,theprovisionsofthissectionapplytoproceedingsbyanownerorpersonincharge of land for the eviction of an unlawful occupier. (2) At least 14 days before the hearing of the proceedings contemplated in subsection (1), the court must serve written and effective notice of the proceedings on the unlawful occupier and the municipality having jurisdiction. 0

4 6 (3) Subject to the provisions of subsection(2), the procedure for the serving of notices andfilingofpapersisasprescribedbytherulesofthecourtinquestion. (4) Subject to the provisions of subsection(2), if a court is satisfied that service cannot conveniently or expeditiously be effected in the manner provided in the rules of the court, service must be effected in the manner directed by the court: Provided that the court must consider the rights of the unlawful occupier to receive adequate notice and to defend the case. () The notice of proceedings contemplated in subsection(2) must (a) state that proceedings are being instituted in terms of subsection(1) for an order for the eviction of the unlawful occupier; (b) indicateonwhatdateandatwhattimethecourtwillheartheproceedings; (c) setoutthegroundsfortheproposedeviction;and (d) state that the unlawful occupier is entitled to appear before the court and defendthecaseand,wherenecessary,hastherighttoapplyforlegalaid. (6)Ifanunlawfuloccupierhasoccupiedthelandinquestionforlessthansixmonths atthetimewhentheproceedingsareinitiated,acourtmaygrantanorderforevictionif itisoftheopinionthatitisjustandequitabletodoso,afterconsideringalltherelevant circumstances, including the rights and needs of the elderly, children, disabled persons and households headed by women. (7)Ifanunlawfuloccupierhasoccupiedthelandinquestionformorethansixmonths atthetimewhentheproceedingsareinitiated,acourtmaygrantanorderforevictionif itisoftheopinionthatitisjustandequitabletodoso,afterconsideringalltherelevant circumstances, including, except where the land is sold in a sale of execution pursuant to a mortgage, whether land has been made available or can reasonably be made available by a municipality or other organ of state or another land owner for the relocation of the unlawful occupier, and including the rights and needs of the elderly, children, disabled persons and households headed by women. (8)Ifthecourtissatisfiedthatalltherequirementsofthissectionhavebeencomplied withandthatnovaliddefencehasbeenraisedbytheunlawfuloccupier,itmustgrantan order for the eviction of the unlawful occupier, and determine (a) ajustandequitabledateonwhichtheunlawfuloccupiermustvacatetheland under the circumstances; and (b) the date on which an eviction order may be carried out if the unlawful occupier has not vacated the land on the date contemplated in paragraph(a). (9) In determining a just and equitable date contemplated in subsection(8), the court must have regard to all relevant factors, including the period the unlawful occupier and hisorherfamilyhaveresidedonthelandinquestion. ()Thecourtwhichorderstheevictionofanypersonintermsofthissectionmay make an order for the demolition and removal of the buildings or structures that were occupiedbysuchpersononthelandinquestion. (11)Acourtmay,attherequestofthesheriff,authoriseanypersontoassistthesheriff to carry out an order for eviction, demolition or removal subject to conditions determined by the court: Provided that the sheriff must at all times be present during such eviction, demolition or removal. (12)Any order for the eviction of an unlawful occupier or for the demolition or removal of buildings or structures in terms of this section is subject to the conditions deemedreasonablebythecourt,andthecourtmay,ongoodcauseshown,varyany condition for an eviction order Urgent proceedings for eviction.(1)notwithstandingtheprovisionsofsection4,theownerorpersoninchargeof land may institute urgent proceedings for the eviction of an unlawful occupier of that landpendingtheoutcomeofproceedingsforafinalorder,andthecourtmaygrantsuch anorderifitissatisfiedthat (a) thereisarealandimminentdangerofsubstantialinjuryordamagetoany person or property if the unlawful occupier is not forthwith evicted from the land; 0

5 8 (b) thelikelyhardshiptotheowneroranyotheraffectedpersonifanorderfor eviction is not granted, exceeds the likely hardship to the unlawful occupier againstwhomtheorderissought,ifanorderforevictionisgranted;and (c) there is no other effective remedy available. (2) Before the hearing of the proceedings contemplated in subsection(1), the court mustgivewrittenandeffectivenoticeoftheintentionoftheownerorpersonincharge toobtainanorderforevictionoftheunlawfuloccupiertotheunlawfuloccupierandthe municipality in whose area of jurisdiction the land is situated. (3) The notice of proceedings contemplated in subsection(2) must (a) state that proceedings will be instituted in terms of subsection(1) for an order for the eviction of the unlawful occupier; (b) indicateonwhatdateandatwhattimethecourtwillheartheproceedings; (c) setoutthegroundsfortheproposedeviction;and (d) state that the unlawful occupier is entitled to appear before the court and defendthecaseand,wherenecessary,hastherighttoapplyforlegalaid. 1 Eviction at instance of organ of state 6.(1)Anorganofstatemayinstituteproceedingsfortheevictionofanunlawful occupier from land which falls within its area of jurisdiction, except where the unlawful occupierisamortgagorandthelandinquestionissoldinasaleofexecutionpursuant toamortgage,andthecourtmaygrantsuchanorderifitisjustandequitabletodoso, after considering all the relevant circumstances, and if (a) theconsentofthatorganofstateisrequiredfortheerectionofabuildingor structure on that land or for the occupation of the land, and the unlawful occupier is occupying a building or structure on that land without such consent having been obtained; or (b) itisinthepublicinteresttograntsuchanorder. (2) For the purposes of this section, public interest includes the interest of the healthandsafetyofthoseoccupyingthelandandthepublicingeneral. (3)Indecidingwhetheritisjustandequitabletograntanorderforeviction,thecourt must have regard to (a) the circumstances under which the unlawful occupier occupied the land and erected the building or structure; (b) theperiodtheunlawfuloccupierandhisorherfamilyhaveresidedontheland in question; and (c) the availability to the unlawful occupier of suitable alternative accommodation or land. (4) An organ of state contemplated in subsection(1) may, before instituting such proceedings,givenotlessthan14days writtennoticetotheownerorpersonincharge of the land to institute proceedings for the eviction of the unlawful occupier. ()Ifanorganofstategivestheownerorpersoninchargeoflandnoticeintermsof subsection(4) to institute proceedings for eviction, and the owner or person in charge failstodosowithintheperiodstipulatedinthenotice,thecourtmay,attherequestof theorganofstate,ordertheownerorpersoninchargeofthelandtopaythecostsofthe proceedings contemplated in subsection(1). (6)Theproceduressetoutinsection4apply,withthenecessarychanges,toany proceedings in terms of subsection(1) Mediation 7.(1) If the municipality in whose area of jurisdiction the land in question is situated is not the owner of the land the municipality may, on the conditions that it may determine, appoint one or more persons with expertise in dispute resolution to facilitate meetings of interested parties and to attempt to mediate and settle any dispute in terms of this Act: Provided that the parties may at any time, by agreement, appoint another person to facilitate meetings or mediate a dispute, on the conditions that the municipality may determine. (2)Ifthemunicipalityinwhoseareaofjurisdictionthelandinquestionissituatedis theownerofthelandinquestion,thememberoftheexecutivecouncildesignatedby thepremieroftheprovinceconcerned,orhisorhernominee,may,ontheconditionsthat 0

6 he or she may determine, appoint one or more persons with expertise in dispute resolution to facilitate meetings of interested parties and to attempt to mediate and settle anydisputeintermsofthisact:providedthatthepartiesmayatanytime,byagreement, appoint another person to facilitate meetings or mediate a dispute, on the conditions that the said member of the Executive Council may determine. (3)Anypartymayrequestthemunicipalitytoappointoneormorepersonsinterms of subsections(1) and(2), for the purposes of those subsections. (4)Apersonappointedintermsofsubsection(1)or(2)whoisnotinthefull-time service of the State may be paid the remuneration and allowances that may be determined by the body or official who appointed that person for services performed by himorher. () All discussions, disclosures and submissions which take place or are made during the mediation process shall be privileged, unless the parties agree to the contrary. Offences and private prosecutions 8.(1)Nopersonmayevictanunlawfuloccupierexceptontheauthorityofanorder of a competent court. (2)Nopersonmaywilfullyobstructorinterferewithanofficialintheemployofthe StateoramediatorintheperformanceofhisorherdutiesintermsofthisAct. (3)Anypersonwhocontravenesaprovisionofsubsection(1)or(2)isguiltyofan offence and liable on conviction to a fine, or to imprisonment not exceeding two years, ortobothsuchfineandsuchimprisonment. (4) Any person whose rights or interests have been prejudiced by a contravention of subsection(1) has the right to institute a private prosecution of the alleged offender. ()TheprovisionsoftheCriminalProcedureAct,1977(ActNo.1of1977),apply toaprivateprosecutionintermsofthisact:providedthatif (a) the person prosecuting privately does so through a person entitled to practice asanadvocateoranattorneyintherepublic; (b) the person prosecuting privately has given written notice to the public prosecutorwithjurisdictionthatheorsheintendstodoso;and (c) thepublicprosecutorhasnotwithin28daysofreceiptofsuchnotice,stated in writing that he or she intends to prosecute the alleged offence, then (i) the person prosecuting privately need not produce a certificate issued by the Attorney-General stating that he or she has refused to prosecute the accused; (ii) the person prosecuting privately need not provide security for such action; (iii) the accused is entitled to an order for costs against the person prosecuting privately if (aa) the charge against the accused is dismissed or the accused is acquitted or adecisioninfavouroftheaccusedisgivenonappeal;and (bb) the court finds that such prosecution was unfounded or vexatious; and (iv) the Attorney-General is barred from prosecuting except with the leave of the court concerned Jurisdiction of magistrate s court 9. Notwithstanding any provision of any other law, a magistrate s court has jurisdiction to issue any order or instruction or to impose any penalty authorised by the provisions of this Act. Transfer of powers, duties or functions. The President may by proclamation in the Gazette, either generally or in respect of such area or in such circumstances as may be specified in the proclamation, provide 4

7 12 thatanypower,dutyorfunctionwhichintermsofthisactispermittedorrequiredtobe exercised, carried out or performed by any authority or person mentioned in the Act, maybeormustbe,asthecasemaybe,exercised,carriedoutorperformedbysuch authorityorperson,includingapersonintheserviceofsuchauthorityoranorganof state, as may be specified in the proclamation. Repeal and amendment of laws, and savings 11.(1) The laws mentioned in Schedule I are hereby repealed to the extent indicated in the third column thereof. (2)TheExtensionofSecurityofTenureAct,1997,isherebyamendedtotheextent indicated in Schedule II. (3)AnylawinforceinthosepartsoftheRepublicwhichformerlyconstitutedthe national territories of the entities known as Transkei, Bophuthatswana, Venda, Ciskei, Gazankulu, KaNgwane, KwaZulu, KwaNdebele, Lebowa and QwaQwa, is hereby repealedtotheextentthatsuchlawisinconsistentwithordealswithanymatterdealt withbythisact. (4) Notwithstanding subsection(1), any transit area declared in terms of section 6 of thepreventionofillegalsquattingact,191(actno.2of191),andallby-laws relatingtosuchtransitarea,shallcontinuetoexistasifthatacthasnotbeenrepealed, until such transit area is abolished by the relevant local authority. Regulations The Minister may make regulations in respect of any matter which is required to beprescribedbytheministerintermsofthisactorwhichisnecessaryordesirablein order to achieve the objectives of this Act, and any such regulation may create offences and provide for penalties in respect thereof. Short title This Act is called the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, 1998.

8 14 SCHEDULE I LAWS REPEALED (Section 11(1)) No. and year of law Short title Extent of repeal Act No. 2 of 191 Act No. 24 of 192 Act No. 62 of 19 Act No. 76 of 1963 Act No. 92 of 1976 Act No. 72 of 1977 Act No. 33 of 1980 Act No. 68 of 1986 Act No. 4 of 1988 Act No. 80 of 1990 Act No.8 of 1991 Act No. 113 of 1991 Act No. 134 of 1992 Act No. 88 of 1996 Act, 191 Amendment Act, 192 General Law Amendment Act, 19 Black Laws Amendment Act, 1963 Amendment Act, 1976 Amendment Act, 1977 Amendment Act, 1980 Abolition of Influx Control Act, 1986 Amendment Act, 1988 Amendment Act, 1990 Abolition of Racially Based Land Measures Act, 1991 Less Formal Township Establishment Act, 1991 Provincial and Local Authority Affairs Amendment Act, 1992 Abolition of Restrictions on the Jurisdiction of Courts Act, 1996 Section 30 Section 12 Sections2,3,4,,6,7,8,9,, 11,12,13,14and1 Sectionsand21 Section31,andthatpartofthe Schedule amending the Prevention of Illegal Squatting Act, 191 Section 1 Sections3and4

9 16 SCHEDULE II LAWS AMENDED (Section 11(2)) 1.Section29oftheExtensionofSecurityofTenureAct,1997,isherebyamendedby the substitution for subsection(2) of the following subsection: (2) The provisions of the Prevention of Illegal [Squatting Act, 191 (Act No. 2 of 191)] Eviction from and Unlawful Occupation of Land Act, 1998, shall not applytoanoccupierinrespectoflandwhichheorsheisentitledtooccupyoruse intermsofthisact..